Daphne Bramham: Hereditary chiefs demand their court-ordered right to be consulted

Daphne Bramham: Hereditary chiefs demand their court-ordered right to be consulted

Beyond saying sorry, reconciliation with Canada's indigenous people has yet to consistently result in the kinds of meaningful consultations envisaged by two decades of court rulings or promises by Ottawa to implement the United Nations Declaration on the Rights of Indigenous People.

For most of the last 50 years, Indigenous people have tried to negotiate, litigate and protest their way to a new relationship with Canada.

In the past 21 years, they have won landmark rulings upholding their title to traditional territories, and their inherent rights including the right to self-government. Repeatedly, the Supreme Court has ruled that neither colonial policies nor post-Confederation legislation has extinguished any of those rights.

Those rights are enshrined in the Canadian constitution, and both B.C. and Canada have promised to implement the United Nations Declaration on the Rights of Indigenous People.

But what’s proving problematic is translating those rights into practice. Beyond saying sorry, reconciliation has yet to consistently result in the kinds of meaningful consultation envisaged by the court.

It has delayed construction of the Trans Mountain Pipeline from Alberta to Burnaby. Now, it’s garnering international attention because of blockades in northern B.C. along the route of the $6.2-million natural gas pipeline planned by a TransCanada subsidiary to fuel a $40-billion liquefied natural gas plant in Kitimat.

Todd Nelson and Christy Brown from the Nisga’a Nation arrive on Wednesday in support of the Unist’ot’en camp and Wet’suwet’en First Nation gather at a campfire off a logging road near Houston, B.C.CHAD HIPOLITO /
THE CANADIAN PRESS

In an attempt to stop the northern pipeline, Wetsu’we’ten hereditary chiefs and their supporters erected barriers and checkpoints on their traditional territory.

Earlier this week, heavily armed RCMP officers began tearing those down and arresting Wetsu’we’ten people.

The provincial and federal governments support the police action, which resulted from an interim injunction granted to Coastal GasLink. Prime Minister Justin Trudeau said Wednesday that the situation wasn’t “ideal,” but that the rule of law must be upheld.

The company, which has contracts worth $620 million signed by elected chiefs and councillors from along the 670-kilometre route, was granted the injunction in December by the B.C. Supreme Court.

“When you look at the political world and the relationship between First Nations and the Crown, there’s a mighty struggle going on between two world views,” Miles Richardson, former head of the B.C. Treaty Commission and former head of the Haida First Nation, said in an interview.

“There’s the Indigenous worldview manifested in the nation-to-nation commitment, and the colonial view, a 200-year-old, failed policy that was denounced by the Truth and Reconciliation Commission and apologized for.”

Satsan, a Wetsu’we’ten hereditary chief who spoke for his people before the Supreme Court of Canada 21 years ago in the Gisday’wa case, was more blunt.

“What is happening now is unlawful and unconstitutional,” said Satsan, who goes by a single name. “They can say until run out of breath that they have band councils on their side. But that doesn’t satisfy the court-ordered requirement to do meaningful consultation and accommodation because the government can’t use its own legislation to justify infringement.”

Among the key decisions behind this clash are the 1997 Supreme Court of Canada decision on the Delgamuukw/Gisday’wa case and, more recently, rulings involving the Haida and Tsilhqot’in (Chilcotin). Those rulings determined that Indigenous people retain title to all of their traditional territories (except where the land has been ceded to the Crown).

The court has recognized the continued existence of traditional forms of government, which on the West Coast means a clan system with hereditary chiefs. And it has urged governments to reconcile with Indigenous people by negotiating with them on a nation-to-nation basis through meaningful consultation and accommodation.

Based on those rulings, all of the Wetsu’we’ten hereditary chiefs and many other Indigenous leaders insist that elected band councils have no authority to negotiate or sign land-use agreements, even if the resulting contracts provide substantial benefits.

As Judith Sayers, a lawyer and elected chief of the Nuu-chah-Nulth, said in an interview, “The Chilcotin case is very clear. Our rights are collective. They do not belong to any of the chiefs. They belong to the people, and you have to ask permission of every single member.”

That doesn’t necessarily mean, however, that support must be unanimous.

Richardson is emphatic that elected band officials have no authority.

“These are poor people and they are trying to get something as their lands are being destroyed around them. But they’re signing away their rights, and in time, this will be seen to be illegal.”

Prior to the Indian Act, there were no elections. Leadership passed through families with the understanding that protecting the people and the land was their primary responsibility.

Under the Indian Act, elected chiefs and councillors are responsible for providing essential services on reserves. But even those powers are circumscribed. The federal cabinet can set aside elections and the minister is able to approve all or part of financial bylaws.

“The damage the Indian Act has inflicted on our people is beyond comprehension,” says Satsan, who works with Indigenous communities across Canada to rebuild their governments.

“The more I deal with the Indian Act, the more I learn it is a gigantic, supernatural monster. You think you’ve dealt with one head and then another pops up. It was designed to kill our people.”

That said, Satsan doesn’t blame Wetsu’we’ten’s elected chiefs and councillors for the current dispute. People are living in poverty on the reserves, desperate for jobs and money.

But he blames the government for allowing companies to prey on that desperation, dividing the community and pitting people against one another.

“What I wish would have happened here is that when the gas company went knocking on the band council’s door with a wheelbarrow full of money, council would have said, ‘We do not hold authority or rights. We have no jurisdiction to deal with that. We have to go to our people and we have to do this work together.’”